Judge gives breathing room to 34,000 foreign workers

Optional Practical Training program extension gets a 90-day reprieve

gavel
Credit: Brian Turner, CC BY 2.0, via Wikimedia Commons

A U.S. judge is giving the Department of Homeland Security (DHS) an additional 90 days to get its act together on the Optional Practical Training (OPT) program.

There are approximately 34,000 foreign workers in the U.S. employed under the Optional Practical Training STEM (science, technology, engineering and math) extension. All students are eligible to work on their student visa for 12 months; STEM students have the ability to work an additional 17 months.

This STEM extension was challenged by the Washington Alliance of Technology Workers, which sees the OPT program as a back-door H-1B visa.

In August, U.S. District Court Judge Ellen Huvelle in Washington agreed with WashTech, and ruled the U.S. had erred by not seeking public comment prior to approving the 17-month extension in 2008.

In a ruling last August, Huvelle set a deadline of Feb. 12 for the U.S. to produce a remedy; if it failed to do so, OPT workers faced the possibility of having to return home.

DHS released a new OPT rule extending the 17-month STEM extension to 24 months. It sought public comments, but it missed deadlines for adoption of a new regulation. It blamed the large volume of comments, 50,500 in total, received in response to the proposed regulation.

As a result, DHS asked the court for an extension until May 10, which Huvelle approved.

"The Court does not doubt that U.S. tech workers might feel some adverse effect from a 90-day extension, but it has not been provided with any reliable data to support this proposition," wrote Huvelle, "and thus, it finds that the balance of equities clearly weighs in favor of an extension."

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